After Groundbreaking Victory in Court, New Expungement Law May Benefit You

By Nashville Expungement Attorney Daniel A. Horwitz:

*Note: This is a free informational resource about expungement law in Tennessee.  If you are looking to hire an attorney to expunge your record for you, please click here instead.*

A new expungement law enacted in 2015 is finally being applied to cases in Nashville.  The reform will benefit tens of thousands of people who were charged with multiple offenses but were only convicted of some of them.

Tennessee’s “partial expungement” law permits people to expunge records in cases where they were convicted of some charges but not others.  The relevant portion of the law states that: “A person . . . shall be entitled to partial expunction of any public records relating to the person’s arrest, indictment, charging instrument, or disposition for any charges other than the offense for which the person was convicted.”  Thus, if a person was indicted on three charges but was only found guilty of one of them, then the two charges that did not result in a conviction can both be expunged from the person’s record.  As explained in this summary of Tennessee’s expungement law, dismissed charges are also eligible to be expunged from a person’s record free of charge.

Although the text of Tenn. Code Ann. § 40-32-101(j) is and always has been clear, government attorneys who oppose the entire concept of expungement persistently refused to acknowledge that this law actually meant what it said. Sadly, denying people access to expungement also commonly results in job loss, housing discrimination, and other lost opportunities.  Until last week, however, people in Nashville who sought to take advantage of the new partial expungement law were all denied their rights.

Fortunately, several recent events finally caused the law to be enforced in Nashville as intended.

First, after being denied the opportunity to expunge a dismissed charge on his record stemming from a two-count indictment, Mr. Bobby Doe (a pseudonym) decided to demand his rights and sue.  Regrettably, the Metro Legal Department had incorrectly advised the Criminal Court Clerk not to process any partial expungements after the new partial expungement law went into effect in July 2015.  Unfortunately, because most people can’t afford to hire an attorney to fight the government, others who had been wrongfully denied their rights under the new partial expungement law did nothing about it.  However, because he needed his record expunged for a job opportunity, Mr. Doe insisted that his rights be respected.  Accordingly, Mr. Doe hired the author of this blog post (Daniel Horwitz) to represent him.  This author then filed suit in Davidson County Criminal Court on August 8, 2016 and demanded a court order directing the clerk to expunge Mr. Doe’s dismissed charge.

Next, three weeks after Mr. Doe filed suit, the Attorney General finally issued an opinion interpreting Tenn. Code Ann. § 40-32-101(j).  It is not clear whether the release of the Attorney General’s opinion – which had been requested long beforehand but had not been forthcoming – was prompted by Mr. Doe’s lawsuit.  Regardless, however, the Attorney General opined that the partial expungement law did, in fact, mean exactly what it said.  Thus, the opinion confirms that: “criminal court clerks must destroy public records that relate [] to offenses for which a petitioner was not convicted.

Despite the Attorney General’s opinion on the matter, however, local prosecutors and attorneys in the Metro Legal Department still refused to comply.  Accordingly, they attempted to fight Mr. Doe’s lawsuit in court, and a contested hearing was held on September 16, 2016.  Thereafter, on September 20, 2016, the Court issued a groundbreaking order (accessible here) in favor of Mr. Doe.  The Court’s ruling declared that Mr. Doe’s reading was correct and that the Government’s reading had been wrong all along.  Consequently, the Court ordered the clerk to expunge Mr. Doe’s record immediately.

Finally, faced with binding judicial precedent on the matter, the government’s attorneys have officially backed down, and hundreds of partial expungements have since followed.  The ruling is a major victory for expungement access that will ultimately benefit tens of thousands of people.  However, it should never have taken fourteen months and a court order for Metro officials to comply with the law in the first place.

If you think that you may be eligible for expungement in Nashville, please click here for a summary of Tennessee’s expungement law or click here to purchase an expungement eligibility evaluation from a licensed Tennessee attorney.  You can also reach the author at daniel@ExpungementNashville.com

Getting a Criminal Record Expunged in Nashville, Tennessee: Frequently Asked Questions

By Nashville Expungement Attorney Daniel A. Horwitz:

*Note: This is a free informational resource about expungement law in Tennessee.  If you are seeking to hire an attorney to expunge your record for you, please click here instead.*

  1. What is expungement?

Expungement is a legal process that results in a person’s public criminal records being “removed and destroyed.”[1]  This means that the record of an expunged arrest or conviction will not show up on a public background check.  The person’s criminal record also will no longer be listed on the Criminal Court Clerk’s website.

  1. What is the benefit of getting my criminal record expunged?

People who have a criminal record frequently face barriers when they apply for a job, housing, school, or to obtain a professional license.[2]  Thus, having a charge expunged helps prevent legal discrimination against people who have criminal history.  For example, if a question on a job application asks if you have ever been arrested, and you got your only arrest record expunged, then you may legally answer “no.”

Additionally, even if you can only get some – but not all – of your criminal records expunged, the expungement process can still be helpful to you.  As Project Return’s Bettie Kirkland has explained: “Every properly expungeable charge that can be taken off of a person’s record, the better off that person is as he or she strives to begin again.”

  1. I was arrested, but my case was completely dismissed. Do I have a criminal record?

Yes, you do.  If you were arrested, then a record of that arrest exists, and it will remain publicly available unless and until you get it expunged.  You can check online to see if your dismissed charges are still publicly accessible on the Criminal Court Clerk’s website.

  1. But I thought that dismissed charges were expunged automatically. Why does mine appear?

You are not alone.  Many people in Tennessee incorrectly assume that dismissed charges are automatically expunged, even though they are not.  For example, between 2000 and 2012, in a single court in Davidson County alone, approximately 128,000 people failed to take advantage of the free expungement process for dismissed or non-prosecuted offenses—leaving a total of 350,000 separate charges that could have been expunged publicly available.   Lots of folks are trying to fix this problem, and many people in the community support a solution to it.

  1. I want to get my record expunged. Am I eligible to do so?

Maybe.

If your charge was dismissed, if you were arrested and released without being charged, if a no true bill was returned by a grand jury, if a judgment of nolle prosequi was entered in your case, if you were found not guilty by a judge or a jury, or if your conviction was reversed on appeal, then you are eligible to have your record expunged free of charge.[3]

If you successfully completed a pretrial diversion program under Tenn. Code Ann. §§ 40-15-102–40-15-107 or a judicial diversion program under Tenn. Code Ann. § 40-35-313, or if your prosecution was suspended by agreement, then you are eligible to have your record expunged unless your charge involved a sexual offense.[4]  However, the clerk will charge you a $450 administrative fee to expunge your records.[5]

If you were convicted of a felony and you were sentenced to less than three years in prison, then you may be eligible for expungement if your charge appears on this list.

If you were convicted of a misdemeanor, then you may be eligible for expungement if your charge does not appear on this list.

Please note that if you are trying to expunge a felony or misdemeanor conviction, then you are only eligible to have your charge expunged if you satisfy every condition on this Expungement Checklist.  That means that you generally* (some exceptions apply; please see below) cannot have any other convictions, at least five years must have gone by since you completed your sentence, and you must have fulfilled all the requirements of your sentence, including payment of fines and court costs. You will also be charged a $280 fee to expunge a conviction.

*Update: Based on a new last enacted on May 5, 2017, some people with exactly two eligible convictions can now get both charges expunged.  Please click here for details.

  1. How do I get my record expunged?

To expunge a dismissed charge or any charge that did not result in a conviction:  If you were not convicted of the charge that you are trying to expunge, then you should fill out this form.

To expunge a misdemeanor or felony conviction:  If you were convicted of the charge that you are trying to expunge, then you should fill out this form.

Along with any applicable fee, you must then bring your completed form in person (do not mail it) to the Davidson County Criminal Court Clerk’s office.  The Clerk’s office is located on the 2nd Floor of the Justice A. A. Birch Building (Suite 2120) at:

408 2nd Avenue North, Suite 2120
Nashville, TN 37201

  1. What happens after my record has been expunged?

Although there are definitely some shortcomings in the expungement process, “[t]he effect of expunging the records of a criminal charge is to restore the person to the position he or she occupied prior to the arrest or charge.”[6]  This means that from a legal standpoint, the expunged offense “never occurred.”[7]  Thus, anyone who has a record expunged “may properly decline to reveal or acknowledge the existence of the charge.”[8]

  1. Is there any reason why I wouldn’t want to get my record expunged?

In limited circumstances, yes.  If you are not a U.S. citizen, for example, then you should consult an immigration attorney prior to getting any record expunged, because you may require the records in immigration proceedings.

  1. Are only criminal records eligible for expungement?

No, expungement is not restricted to criminal records.

If you successfully defended against an order of protection that was brought against you, then you can have all public records concerning the order expunged free of charge.[9]

Additionally, if both parties to a divorce proceeding agree to have their request for divorce dismissed and they jointly request expungement of their divorce records, then Tennessee law permits expungement of all records pertaining to the divorce proceedings for an administrative fee of $50.00.[10]

  1. I want an attorney to assess my expungement eligibility/expunge my record for me.  Can I hire you?

Yes.  If you would like to hire an attorney, I (Daniel Horwitz) offer expungement services in Nashville for a small fee.  Please click here to purchase an expungement evaluation and review a list of services offered.

[1] See generally, Tenn. Code Ann. § 40-32-101.

[2] David Louis Raybin, Expungement of Arrest Records: Erasing the Past, Tenn. B.J., March 2008, at 22.

[3] See Tenn. Code Ann. § 40-32-101(a)(1)(A); Tenn. Code Ann. § 40-32-101(a)(1)(F); Tenn. Code Ann. § 40-32-101(3).

[4] See Tenn. Code Ann. § 40-32-101(a)(1)(B); Tenn. Code Ann. § 40-32-101(a)(6); Tenn. Code Ann. § 40-32-101(D); Tenn. Code Ann. § 40-15-105(e).

[5] Tenn. Code Ann. § 40-32-101(a)(1)(B); ; Tenn. Code Ann. § 40-35-313(d)(2).

[6] Pizzillo v. Pizzillo, 884 S.W.2d 749, 754 (Tenn. Ct. App. 1994).  See also Tenn. Code Ann. § 40-32-101(g)(15)(B) (“an expunction has the legal effect of restoring the petitioner, in the contemplation of the law, to the same status occupied before the arrest, indictment, information, trial and conviction. Once the expunction order is granted and the petitioner pays the fee required by this subsection (g) or subsection (h), no direct or indirect collateral consequences that are generally or specifically attendant to the petitioner’s conviction by any law shall be imposed or continued.”).

[7] Tenn. Code Ann. § 40-32-101(g)(15)(D) (“Expunction under this subsection (g) or subsection (h) means, in contemplation of law, the conviction for the expunged offense never occurred and the person shall not suffer any adverse affects [sic] or direct disabilities by virtue of the criminal offense that was expunged.”).

[8] Pizzillo, 884 S.W.2d at 754.

[9] Tenn. Code Ann. § 40-32-101(a)(5) (“All public records concerning an order of protection authorized by title 36, chapter 3, part 6, which was successfully defended and denied by the court following a hearing conducted pursuant to § 36-3-605, shall, upon petition by that person to the court denying the order, be removed and destroyed without cost to the person.”).

[10] Tenn. Code Ann. § 36-4-127 (“Parties to any divorce proceeding, who have reconciled and dismissed their cause of action, may thereafter file an agreed sworn petition signed by both parties and notarized, requesting expunction of their divorce records. Upon the filing of such petition, the judge shall issue an order directing the clerk to expunge all records pertaining to such divorce proceedings, once all court costs have been paid. The clerk shall receive a fee of fifty dollars ($50.00) for performing such clerk’s duties under this section.”).

© 2015-2016 Daniel A. Horwitz.  All rights reserved.